October 13, 2010 - PRESS

PRESS

SPECIAL FEATURE: TEXAS DEATH ROW DNA CASE SCOTUS BLOG
 OCTOBER 13, 2010

Special feature: Texas death row DNA case Mary A. Fischer Feature Stories - SCOTUSBlog October 7th, 2010 Part #1: The Arguments — "Why don't they just test the damned evidence? » The day of death had arrived. Wednesday, March 24. A light rain began to fall as the prison van transported Henry Skinner to Huntsville.

Skinner writes: Damn, what a bunch of guns. You ain't never seen so many high tech weapons in your life. Red necks flaunting their toys. All down the gauntlet were all kinds of officers, civilian personnel, all lined up to see me off. It was easy to tell who was supportive, who was sad to see what was happening and who had the hater attitude ("Die, Skinner, die!" ).

I just kept my head high and laughed.

Unfortunately this execution was to occur on Lt Raymond Duff's card and no sooner had I come out of the visit booth than he started in with his Robocop routine, trying to show off for the warden and some of the assembled Huntsville brass, jerking around on me, clamping the shackles and cuffs on overly officiously. We had a few tense moments when he tried to twist me around in the visit cage while my legs were stuck between the bench and the wall, nearly broke my ankles.

Back through the gauntlet of gawkers. Most of them looked like a pack of buzzards on a power line just waiting on som' to die. Sad but true.

My lawyers kept telling me I had some chance in the Supreme Court; but you know, all the courts to consider my case so far have turned it down on spurious grounds. The Fed Magistrate's "Findings" in 2006 were a joke. The CCA's Chapter 64 rulings on DNA were worse. The 5th circuit's ruling in July last year was so against the weight of their own prior precedents, I guarantee you Judge Jerry Smith could not look me in the eye with a straight face and justify their idiotic ruling. The Parole Board's denial of a recommendation for commutation or reprieve was laughable. So I fully expected to die. I did not expect zip out of the Supreme Court or Governor Perry.

The urgent call came at 5:15 p.m., forty-five minutes before Henry Skinner was scheduled to die for the brutal 1993 murders in Pampa, Texas of his live-in girlfriend Twila Busby and her two sons.

"Hello, Hank," attorney Doug Robinson yelled excitedly into the phone outside Huntsville's death chamber. "You have the most uncanny sense of timing of anyone I know. We just got word the Supreme Court granted you a stay! » Forty-seven-year-old Hank Skinner would have been the fifth person executed in Texas this year, and the near-death experience rattled him for weeks. "Once you really prepare yourself for death and are convinced of it happening, it seems difficult to come back to life. I still feel death's bony digits clutching at my shoulders, trying to pull me down and over into the abyss. » Now he is hopeful again. On October 13, a new battle over post-conviction DNA testing begins as the Supreme Court hears arguments in Skinner v. Switzer. Alaska prosecutors won the last round in 2009, when the Justices "“ by a vote of five to four "“ruled that convicted rapist William Osborne had no constitutional right to obtain access to the state's evidence for DNA testing.

Skinner's pro bono lawyers "“ Doug Robinson and Rob Owen "“ are not discouraged by the Osborne ruling, which they believe left a door open to challenge what they claim were "inadequate and unfairly administered state procedures. » "We look forward to the opportunity to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing," Owen told the Texas Tribune in May, "the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit. » Texas prosecutors argue that Skinner did not meet a key requirement "“ sufficient evidence to establish his innocence "“ to be eligible for additional testing under the state's 2001 post-conviction DNA law. What's more, they say, he already had his chance to have the evidence tested at his original trial, but chose not to. The time to contest his conviction is over, they insist.

There is plenty of biological evidence left to test from the grisly crime scene: vaginal swabs, fingernail scrapings, two bloody knives, and hairs found clutched in Busby's fingers. So it is tempting to state what seems obvious: when a man's life or death depends on it, and the evidence still exists, why not just test it?

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I wanted to ask Gray County District Attorney Lynn Switzer, who controls access to the evidence that question. Her predecessor, D.A. John Mann (now deceased) prosecuted Skinner at his original trial in 1995. Skinner himself pleaded with Switzer. "All I'm asking you, Madam, is to do the right thing and test this evidence," he wrote in a five-page letter. "All three of your predecessors in the district attorney's office have said that the evidence in my cases needs to be tested. I'm an innocent man. Don't let me die for something I didn't do, please. » Switzer wouldn't talk to me, citing the ongoing litigation, but her short answer would likely be procedure. Her attorneys "“ Mark D. White and Gregory Coleman, both of whom are in private practice in Texas "“ are convinced that Osborne weighs in their favor, telling the Court in their brief that it had "endorsed giving States wide latitude to devise their own statutory solutions" in problems presented by post-conviction access to DNA testing.

I spoke to Kenneth Rosenstein, the Alaska assistant attorney general who successfully argued Osborne, and he has strong advice for Skinner's lawyers. "What they should do is follow the law. The answer lies in procedure. There are mechanisms already in place for defendants to get DNA testing and they just want to make an ad hoc argument that I believe is in some sense more emotional than legal. That's not the way things work in this country. » In May, Switzer made her only public statement on the question, explaining in a letter to a local Texas television station that "there have been so many questions, speculations, allegations and outright misrepresentation in this case that it has been difficult to stand silent. . . . Skinner had a full and fair trial before a Gray County jury. He was convicted. The fact that the Supreme Court has granted Skinner's request for a final review of this matter provides an excellent opportunity for the Court to affirm that once a convicted state prisoner has had an adequate opportunity to make a due process challenge to his conviction through a habeas corpus proceeding, other post-conviction proceeds are better left to the states to handle.

"I made the decision to defend against this suit with an eye not only on Mr. Skinner's case but on past and future cases as well. I knew that there were ramifications for District Attorneys all across the state. I felt it was important to stand firm, something that is not always easy to do. If defendants are allowed to "game the system' then we will never be able to rely on the finality of the judgment entered in their cases. » In the country's ongoing wars over capital punishment, finality is a longstanding argument. To Lynn Switzer, Henry Skinner is just another guilty defendant who is gaming the system and draining it of hundreds of thousands of dollars to postpone his execution.

The emergence of DNA testing, however, "turned that old notion of finality on its head," says Nina Morrison, staff attorney for New York's Innocence Project who worked on Skinner's court briefs. "When staggering numbers of people were proven conclusively innocent of crimes they didn't commit, a lot of people said, wait a minute, what kind of finality are we talking about if we're talking about executing people who might be innocent. That may not be the finality we were bargaining for. And maybe we do need to rethink this notion of limiting access to courts or new evidence based on arbitrary time limits. » Many inside Texas believe there's much more at issue in Henry Skinner's case than just procedural questions. "You've got to know Texas to understand this case," Jeff Blackburn, founder of the Texas Innocence Project told me. "We have a deeply institutionalized culture and the most backward courts in the country that protect the government from criticism or fault at all cost."

Then there's Henry Skinner himself.

Part #2: Crimes and Doubts — "It's too bad this is the test case for post-conviction DNA testing because it's so screwed up." A Texas blogger on Henry Skinner's case To some people who've met him at the Polunksy Unit in Livingston, Texas, Hank Skinner does not immediately strike them as an innocent man who's been wronged by the system. "He's got an attitude toward government and law enforcement that I totally understand," explains Texas Innocence Project founder Jeff Blackburn, "but a lot of people wouldn't. Hank defies the conventional thinking about how somebody who's crusading for his own innocence ought to act as he's pretty adamant about it to the point of being abrasive. » Fifteen years in solitary confinement in a nine-by-twelve cell can toughen a person, and Skinner recently wrote: "Since day one I have been proclaiming my innocence. I did not commit these murders. Everybody, everything in this case, they're liars. All they got is excuses and bullshit. »

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In the past, he was a hard-drinking, loud-mouth former construction worker who did jail time for theft. During his years on death row, Skinner has not endeared himself to some prison officials. In 1998, with Jeff Blackburn as his attorney, he successfully sued officials for opening his attorney-client mail. However, the contraband incident in November 2008 didn't come out as he had hoped. During a shakedown of death row, guards found two SIM "“ i.e., memory "“ cards in Skinner's Bible.

The Crimes It was just before midnight on a stormy New Year's Eve in 1993, when the small house that Skinner shared with his girlfriend and her two sons on a peaceful street in Pampa, Texas, turned into a bloodbath. Forty-one-year-old Twila Busby lay motionless in the living room, strangled and then beaten to death with an ax handle. Her boys didn't escape the horror either; they died from multiple knife stab wounds.

Pampa police had good reason to suspect Skinner initially. Three hours after arriving at the crime scene, they found him hiding in a neighbor's house a few blocks away, stumbling and disoriented, his pants and shirt covered in blood. He acknowledged then "“ as he does now "“ that he must have been present at the house when the killings occurred. But he couldn't have had the physical strength to inflict such brutality, he says, because he was passed out unconscious on the couch from a mix of vodka and codeine.

As alibis go, it sounded pretty feeble, but at trial, toxicology reports supported it. His incapacity at the time of the murders was so severe, one scientist testified, that a moderate drinker with that much alcohol and codeine would “almost certainly be comatose, and in some cases be near death or even dead.”

If not Skinner, then who? Skinner and his lawyers are convinced that Robert Donnell, Twila’s uncle, was the likely killer. He became mean and violent when he drank, which was much of the time. Witnesses later testified he had been "hitting on" his niece at a New Year's Eve party shortly before the slayings. Rebuffing his advances, she left the party frightened, with her uncle following behind, according to the witnesses.

The pivotal moment of the trial, however, occurred when Harold Comer, Skinner's trial attorney, made the decision not to test any of the DNA evidence from the crime scene. This is when the best opportunity to test all of it was lost, and the fifteen-year battle began. Before the trial, prosecutor John Mann had selectively tested three out of a dozen DNA items, and the results confirmed that the bloodstains on Skinner's clothing belonged to Busby and her two sons.

Behind the scenes, Skinner says he fought with Comer to test the evidence, so much so that "we nearly came to physical blows over this. I kept telling him I was innocent and that some of the evidence would show Donnell's DNA. » "This is where things first got screwed up," says veteran Austin capital defense attorney Roy Greenwood. "If my client is being charged with capital murder, and he demands that I request DNA testing, for the purposes of entering a not guilty plea, full DNA testing is going to be requested. From what I know about the Skinner case, if he can be believed, any attorney who fails to investigate DNA evidence is clearly ineffective. » Depending on who you talk to, Comer either made the correct strategic decision not to test the DNA evidence, fearing that it would further incriminate Skinner, or he made a huge mistake"“ that some regard as politically motivated "“ and forever waived Skinner's right to test the evidence.

Comer didn't return my calls, but in September, I received a letter from Skinner. "Harold Comer is a Judas. He sold me out and sold my life to [D.A.] John Mann for $86,000 to pay his way out of an IRS tax lien debt. That's the real reason Comer didn't test the evidence. He's a good "ol boy and when he was D.A., he got busted stealing $10,000 from the drug forfeiture fund and was forced to resign."

Doubts Skinner's fight to prove his innocence got a big boost when investigative journalism students from Chicago's Northwestern University traveled to Pampa, where they uncovered significant evidence missed by police and prosecutors. Under the direction of Professor David Protess, Medill Innocence Project students had contributed to the exoneration of eleven innocent men and women, five from death row.

The students were industrious during their five-day trips. They visited the trailer park where Andrea Reed, the prosecution's star witness lived. In the original trial, Reed had testified that when Skinner came to her trailer shortly after the murders, he made incriminating statements and demanded that she not call the police. But in 1997, she told the students that law enforcement had intimidated her into making false statements.

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They tracked down friends of Busby's who said that the other potential suspect–her uncle Robert Donnell (who died in 1997) had raped her twice and stalked her at a party on the night of the murders. Donnell's neighbors told the students they had seen him "tearing the carpeting out of his truck the morning after the crime, scrubbing the interior and repainting the vehicle within a week." More incriminating, perhaps, was the windbreaker found next to Busby's body "“ one similar to the one Donnell wore "“ covered with human hairs and sweat. Why, the students kept asking themselves, didn't defense attorney Harold Comer test such crucial evidence at the trial?

And what about the strands of hair found in Busby's hand? This is where things enter the realm of politics. Texas style.

Part #3: Inside Texas–Dallas D.A. "without a doubt" would test DNA evidence –"This case has been brutal. Why? Because it's Texas, that's why." Attorney source close to the case.

It seems that in the pursuit of truth, like real estate, location is everything. Had convicted murderer Henry Skinner requested post-conviction DNA testing in Dallas instead of Pampa, where the triple homicide occurred, the Supreme Court would not be hearing arguments in Skinner v Switzer this Wednesday — or any other time.

While Pampa's District Attorney Lynn Switzer decided to "stand firm" and deny access to the Skinner evidence, 370 miles away, in Dallas, fellow chief prosecutor Craig Watkins, takes an opposite stance. "If I was faced with that decision, it would be an easy one," he told me recently. "Without a doubt, I would test all the evidence. Whether Mr. Skinner waived his right to test the evidence at his trial is irrelevant. Whether justice has been served is what's relevant. » Among prosecutors in Texas — and the rest of the country — Watkins is a rare breed. Elected in 2006, he created the country's first convictions integrity unit that relies on DNA testing denied by previous prosecutors. The results so far: fourteen innocent Dallas County men have been released from prison.

Many believe that prosecutors in Gray County, where Pampa is located, are "holdouts." "The extreme position taken by the prosecutors in Gray County is not one that we encounter very often in 2010 as the vast majority of them readily agree to perform DNA testing in capital cases," says Nina Morrison, a staff attorney for New York's Innocence Project who worked on Skinner's court briefs. "That Mr. Skinner has had to battle for a simple DNA test for over 15 years and come within 45 minutes of being executed without receiving one, makes this case a real outlier. » To understand why Pampa prosecutors are "really dug in on Skinner," says retired Austin capital defense attorney Roy Greenwood, "you have to know the history that is mixed up with politics, money and corruption. » It starts with Harold Comer. Before he defended Hank Skinner in 1995 for the murders of Twila Busby and her two sons, he prosecuted him for car theft and assault. Comer was the district attorney in Pampa from 1988 to 1992, when he resigned– and was later suspended by the Texas State Bar–after admitting that he improperly borrowed $10,000 from a drug seizure fund.

Enter Comer's successor, John Mann, who prosecuted Skinner for the 1993 murders. "John was a very complicated guy and certainly capable of making dire mistakes," explains Jeff Blackburn who defended cases against Mann. "He was representative of a time in west Texas when all you needed to be a successful lawyer was show up and be a great courtroom warrior. John could sell ice to Eskimos. He was a good old-fashioned lawyer but a really bad lawyer for the modern age. "And Comer," adds Blackburn, "was loyal to Mann. » The conflict of interest stuns Northwestern University professor and Medill Innocence Project founder David Protess, whose team of journalism students investigated Skinner's case. "No wonder he didn't really put on a defense," Protess told me. "This is the same lawyer who had convicted Skinner, twice, and then he was supposed to fight for the DNA evidence that could have exonerated him."

In 2000, Mann was up for re-election. In response to questions raised in the media regarding Skinner's possible innocence, he decided to have additional DNA material tested. “I’m going to test it all and see if I can’t put a few more nails in that man’s [i.e. Skinner’s] coffin," Mann announced to the press.

However, he didn't send all the evidence to Dallas lab GeneScreen, including such items as the man's windbreaker found next to Busby's body "that could exculpate Mr. Skinner and potentially inculpate another individual," claim Skinner's attorneys.

Mann did test the hairs found in Busby's right hand, but in November 2000, as that testing was still in process, Mann lost his re-election bid. Before he left office, he announced to the press that he had been told orally by GeneScreen that the hairs, as well as blood found on them, was Skinner’s.

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The problem? It wasn't true. The final GeneScreen report concluded: Henry Watkins Skinner is excluded as a potential contributor to these hairs. Neither Twila Busby nor a maternal relative of Twila Busby can be excluded as the potential contributor of these hairs.

The findings bolstered Skinner's persistent claim that the real killer was Robert Donnell "“ Busby's uncle on her mother's side and therefore a “maternal relative. » Mann was succeeded as Gray County's new chief prosecutor by Rick Roach, who halted any further DNA testing and later disgraced the office when he became the target of an FBI investigation triggered by two state troopers who refused to take Roach's bribes. In 2002, according to FBI reports summarized in news accounts, Roach offered "Rolex watches and cash to the troopers in exchange for stepping up cash and drug seizures knowing that a third of the cash and property would come back to his office" –to support his drug habit. In January 2003, agents stormed a Pampa courtroom, opened Roach's briefcase and found two guns and a stash of methamphetamine. He was sentenced to five years in federal prison.

The current district attorney, Lynn Switzer, was Roach's former assistant. While Switzer denied that she knew about her boss' drug habit, she acknowledged at the time that she knew Roach “was obsessed by money . . . [and] collecting it in these busts.” And, she continued, "I do know we argued about the strength of the cases he wanted to pursue. » The impact of all this on Skinner's case? "The real story here is that when exculpatory results came back, they stopped doing further testing,” says Northwestern's David Protess. "They're afraid they might have made a mistake. I admire Texas for a lot of their free thinking. But how can we allow a man to be put to death when there is physical evidence that can conclusively determine if another man did it? Any rational person knows the answer. » Nearly every week at the courthouse in Pampa, defense lawyer Jeff Blackburn has some legal matter that involves Lynn Switzer. "Ms. Switzer's office is a classic example of everything that's wrong in Texas," he says. "She is an unskilled lawyer who has found that the way to stay elected is to pander to the lowest law and order denominator. Gray County is economically devastated and the political viewpoints there would make people in the Tea Party blush. » The specter of another high-profile Texas death penalty case looms over Skinner v. Switzer. On Thursday, a judge in Austin will re-examine arson evidence used to convict Cameron Todd Willingham, who was executed in 2005 for setting a house fire that killed his three young daughters. Serious doubts remain about the forensic arson evidence presented at Willingham's trial, which has since been discredited by arson experts.

With seventeen exonerations in Texas to date, and allegations that Willingham and four others who were executed may have been innocent, "prosecutors are appropriately defensive," says Austin attorney Roy Greenwood. "And Skinner is probably a do or die case for them. » http://www.scotusblog.com/2010/10/argument-preview-texas-death-row-dna-case/

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